In 1986, Antonin Scalia’s nomination to the Supreme Court was confirmed by the U.S. Senate with a 98–0 vote. In one of those interesting twists history often takes, his was the last Supreme Court nomination confirmed without a partisan political battle.
Scalia’s nomination and those of his predecessors had been judged by the Senate on the nominee’s fitness to be a justice of the Supreme Court, fitness having to do with the nominee’s education, qualifications, experience, judicial temperament, etc.
At that time it was assumed and generally granted by the U.S. Senate that a president should be allowed a broad latitude in deciding what the judicial philosophy of the nominee ought to be.
Occasionally presidents would seek to maintain a certain philosophic balance on the court. The most-often cited case of this was when in 1932, Herbert Hoover, in the midst of a reelection campaign, went against his own judicial philosophy to appoint the liberal Benjamin Cardozo from the New York appellate bench to replace the left-leaning Oliver Wendell Holmes, Jr.
Hoover had previously nominated two conservative Republicans to the Supreme Court and decided now to balance those nominations by nominating a liberal Democrat to replace Holmes. Despite the fact that Cardozo was a Democrat and liberal and he faced a Republican and conservative Senate, he was confirmed by a unanimous vote.
Soon thereafter Cardozo and Justices Louis Brandeis and Harlan Stone would form the New Deal bulwark on the court and become know as the Three Musketeers.
But such balancing has only rarely been sought by presidents, who generally try to place on the court justices who share their own personal philosophy. And until 1987, that was largely considered by the Senate to be the president’s prerogative, hence the unanimous confirmation of Scalia, one of the most conservative justices of the last 50 years.
The Supreme Court nominee to follow Scalia was Robert Bork. But in the interim between these two nominations Senator Joe Biden D-DE had taken over as the Chair of the Senate Judiciary Committee, the committee with jurisdiction over all judicial nominees.
With Biden as the chair, Bork, a nominee whose background and judicial philosophy were remarkably similar to Scalia’s, saw his nomination descend into what at that time became one of the fiercest partisan battles over a Supreme Court nomination the country had ever seen. At one surreal point Bork found himself discussing with the Judiciary Committee movie videos he had rented at his hometown rental store. Worse was to come.
His nomination failed on an overwhelmingly party-line vote, and a new verb had entered the vernacular. Merriam-Webster identifies Bork as a transitive verb meaning “to attack or defeat (a nominee or candidate for public office) unfairly through an organized campaign of harsh public criticism or vilification.”
The rank and file of the Democratic party loved it. Biden, theretofore an obscure senator from Delaware, had catapulted himself onto the national political stage as a force with whom the Democratic Party, if not the nation, must reckon. The 1988 Biden presidential campaign was off to a strong start and was only derailed when he was caught plagiarizing the speeches of British Labour Party Leader Neal Kinnock.
The Republican rank and file licked its wounds and laid in wait.
The power that Biden used to launch his national political career arises directly from the “advice and consent” clause of the constitution. It would be interesting to know what the Founding Fathers had envisioned when they gave the Senate the power of advice and consent.
George Washington took the term at face value and showed up one day early in his presidency to get the advice of the Senate on a treaty his administration was pursuing with a Native American tribe. Vice-President John Adams, who had been presiding that day, got up and gave his chair to Washington, who sat down to receive the advice of the Senate. For two days the Senate rambled on without offering much in the way of actual advice. Finally, Washington was heard to say under his breath, “This defeats my whole purpose in coming here.” He then surrendered the chair back to Adams, exited the chamber, and never returned. His famed Farewell Address was read to the Senate by a clerk.
Informally, presidents seek “advice” from senators on key appointments, but in reality these informal conversations and meetings are aimed at discovering whether a particular nominee can get the “consent” of the Senate. For the most part, presidents could not care less about getting any actual advice from the Senate, regardless of which party is in the majority.
But if “advice” is ambiguous enough to be dispensed with, “consent” is not. And the Senate has jealously guarded the prerogative contained in this more objective term and rightly so.
When a treaty or an appointment requires the Senate’s “consent,” nothing is happening until that consent is given. And do not think, Mr. President, about getting it in a hurry. You may not need their actual “advice,” but you must have their “consent,” and that is hard won, if won at all.
From the the Bork nomination down to President Obama’s current nomination of Merrick Garland to replace Scalia, every Supreme Court nomination has been mired, to some degree, in a heightened level of politics.
While Scalia’s family was still awaiting funeral rites, Senate Majority Leader Mitch McConnell R-KY announced that the Senate would not consider any Obama appointment to the court. Outright refusal to even pretend to consider a nominee is just the latest tactic in a war of tactics and maneuvers.
Of course, Democratic senators, who currently form the minority, are completely bewildered why McConnell and Senate Republicans are refusing to consent to what by any measure seems to be an extremely well-qualified nominee in Merrick Garland.
On March 20, Senate Minority Leader Harry Reid D-NV appeared on Meet the Press and reiterated a point he’s made hundreds of times since Scalia’s death. “We (the Democrats) have never held up a Supreme Court nomination,” he said.
For their part, Republicans had been outraged when, during the Bush administration, then-majority leader Harry Reid and his follow Democratic senators racked up a backlog of over 200 nominees of all kinds, many of them appointments to the federal bench. The Senate simply refused to take action on any of them, even going so far as to hold “30-second pro forma sessions” of the Senate over holidays to keep Bush from making recess appointments for any of them.
Republicans were then absolutely flummoxed when Reid, now once again relegated to the minority, renounced that practice when Obama became president and the Republicans, having recovered from their earlier outrage, began giving Obama the same treatment Reid had given Bush.
The more one looks into this, the more it is clear that the only constant in this decades-long escalation of politicizing the Supreme Court, and indeed the entire federal bench, is hypocrisy.
From Bork’s nomination down to Garland’s, each nomination and confirmation has been tarred with an escalating level of politics. Each party, when it has taken control of the Senate, has responded asymmetrically to the previous political escalation when the opposing party had control.
The last time Reid had control, he instituted something called “the nuclear option,” and he is somehow surprised when Republicans now brazenly foist on him some “options” of their own.
Each new tactic or maneuver has spawned a fresh wave of hypocritical statements from both sides diametrically opposed to statements the very same people made when last the roles were reversed. Apparently no one has pointed out to the U.S. Senate how Google works.
And what effect has all this had? The Roberts Court is perhaps the most political court we have ever had. Certainly the most political court since the Hughes Court of the 193os.
That court survived FDR’s attempt to pack it with six new members and bring the total number of justices to 15. FDR’s scheme failed spectacularly, dealing him the most stinging defeat of his presidency.
But careful observers of the court were not so sure that FDR actually did lose, as they noticed a definite and steady leftward shift of the court during and after the court-packing battle, as justices found legal doctrines that had previously been well-hidden in the constitution.
Today only one question need be asked when predicting how a Supreme Court Justice (or for that matter any federal judge) will rule on a case of any political importance whatsoever, and that question is: Who nominated her or him? That one piece of information and nothing else will allow you to predict nine out of ten times how a justice will vote in any case charged with even a moderate level of politics, almost without regard to the actual issues at stake in the case.
In the Supreme Court case Bush v. Gore, the case that decided the 2000 presidential race, there were two central questions: Were the vote recounts, as they were being conducted in Florida, constitutional? And, if the recounts were unconstitutional, what would be the remedy? Take the politics out of the case, which the Supreme Court is supposed to do, and those two questions would not seem to break down on a Republican/Democrat axis or even a liberal/conservative axis. Yet each justice in that case voted with the party of the president who had nominated her or him.
In the 2012 case that originally decided the constitutionality of Obamacare and the same-sex marriage case in 2015, there was never one iota of doubt how the Democrat appointees would rule. Think about that for a second. None of them even felt the need to offer a written opinion of the legal and constitutional reasoning behind their votes. They were silent, literally and figuratively. But no one cared because no one assumed they would do any different.
Every single member of this court is a product of either Yale or Harvard Law, and this is the dazzling intellectual rigor to which we are treated?
What caused the uproar? In each case one of the Republican justices broke with his party and voted with the Democrat justices. The Republican rank and file went ballistic. The gnashing of teeth went on for weeks.
What is happening, or not happening, with the nomination of Merrick Garland is just the latest asymmetrical escalation in a decades-long battle for political control of the courts. In some cases these fights have degenerated into a take-no-prisoners-and-bayonet-
For a refresher on such a battle see the upcoming HBO film Confirmation, which will dramatize (and likely fictionalize) the Clarence Thomas confirmation hearings. Appropriately enough, the film will feature in its starring role Kerry Washington, who is also the star of the hit ABC seriesScandal.
In the more than 200-year history of the constitution, politics on the Supreme Court have ebbed and flowed, but the court, not to mention the country, has fared better during the times when it has ebbed. What will cause this current wave of politics crashing in on the court to crest? I have no idea, but it cannot come fast enough.
Charles Evans is a writer and government relations professional. He lives in Draper.